AN appeals court has found that a judge was “clearly in error” when he compared incest and paedophilia to homosexuality after dismissing evidence of sexual abuse by a man against his sister and that the trial should be heard by a different judge.

Earlier this month, during the case of a 58-year-old man charged with raping his younger sister in 1981, Sydney-based District Court judge Garry Neilson was reported by Fairfax Media as saying that in the same manner as homosexuality was once seen as taboo, but is now accepted, so “a jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now ‘available’”.

Neilson was eventually referred to the NSW Judicial Commission by Attorney-General Brad Hazzard and he stood down from new criminal trials.

The man pleaded not guilty to committing sexual intercourse without consent and an alternative charge of incest.

The jury was also discharged.

However, Fairfax Media today reported that the Court of Criminal Appeal passed a ruling to set aside Judge Neilson’s court ruling and ordered a different judge preside at the trial in September, as well as a new jury.

The appeals court said Judge Neilson’s “discretion miscarried” because without evidence of the years of unwanted sexual conduct, “it would inevitably appear surprising to a jury that [he] would, out of the blue, enter his sister’s bedroom and attempt to have intercourse with her while she was asleep”.

It also questioned Judge Neilson’s reasoning that the sexual abuse that had occurred when the girl was 10 or 11 and the man was 17 occurred in a different context to the sex that later happened when she was 18 and he was 26.